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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Fritzner Simon ) File No. EB-03-TP-091
1411 Foxboro Drive ) NAL/Acct. No. 200432700003
Warrenton, Missouri ) FRN 000432700003
FORFEITURE ORDER
Adopted: September 8, 2004 Released: September 10,
2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand dollars
($10,000) to Mr. Fritzner Simon (``Mr. Simon'') for willful
violation of Section 301 of the Communications Act of 1934, as
amended (``Act'').1 The noted violation involves Mr. Simon's
operation of a radio station on the frequency of 87.9 MHz without
Commission authorization.
2. On December 11, 2003, the District Director of the
Commission's Tampa, Florida Field Office (``Tampa Office'')
released a Notice of Apparent Liability (``NAL'')2 proposing a
forfeiture in the amount of $10,000 for the noted violation. Mr.
Simon filed a response to the NAL on January 5, 2004.
II. BACKGROUND
3. On March 5, 2003, agents from the Tampa Office
determined that an FM radio station operating on 102.1 MHz was
broadcasting from a building located at 1719 Columbus Drive,
Tampa, Florida. The agents concluded on the basis of field
strength measurements of the station's signal that a Commission
authorization was required to operate the radio station.3 A
search of the Commission's records showed that no license had
been issued for the operation of an FM broadcast station at this
location. That same day, the agents inspected the station and
found an FM transmitter in operation. One of the persons present
at the radio station identified himself with a photo
identification as Mr. Fritzner Simon. Mr. Simon informed the
agents that he operated the station with his brother. The agents
issued written and verbal warnings for unlicensed operation to
Mr. Simon, who voluntarily agreed to surrender an exciter and the
radio transmitter to the agents.
4. On August 21, 2003, agents conducting routine
monitoring of the FM broadcast band observed a radio station
operating on 87.9 MHz, and subsequently determined that the
station was broadcasting from a room on the second floor of a
residence located at 4206 Nebraska Avenue, Tampa Florida. Based
on field strength measurements, the agents concluded that the
station's signal exceeded any low-powered transmission allowed on
any FM frequency.4 The agents also observed that the station
operated continuously for over an hour, in contravention of the
Commission's Rules.5 According to the Commission's records,
there was no license covering the operation of an FM broadcast
station at this location. Further, the agents determined that a
vehicle in the driveway of the residence was registered to Mr.
Simon and his brother. On September 10, 2003, the agents met
with the owner of the residential property. After reviewing
photographs of Mr. Simon, the property owner identified Mr. Simon
as the person using the space at his residence.
5. On December 11, 2003, the Tampa Office issued an NAL to
Mr. Fritzner Simon, finding that he willfully6 and repeatedly7
violated Section 301 of the Act by operating a radio station on
the frequencies of 102.1 and 87.9 MHz without Commission
authorization, and proposing a forfeiture in the amount of ten
thousand dollars ($10,000). In his response, Mr. Simon admits
that he operated a radio station at 102.1 MHz without
authorization on March 5, 2003. However, as detailed below, Mr.
Simon claims that he has ``no idea'' about the unlicensed
operation of a radio station at 87.9 MHz from a residence located
at 4206 Nebraska Avenue on August 21, 2003. Mr. Simon admits
that his vehicle was parked in the driveway of the residence on
that date, but claims that his wife and ``her friend'' were using
his vehicle that day.
III. DISCUSSION
6. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),8 Section 1.80 of the Rules,9
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Forfeiture Policy Statement''). In examining Mr.
Simon's response, Section 503(b) of the Act requires that the
Commission take into account the nature, circumstances, extent
and gravity of the violation and, with respect to the violator,
the degree of culpability, any history of prior offenses, ability
to pay, and other such matters as justice may require.10
7. Section 301 of the Act prohibits radio operation
``except under and in accordance with th[e] Act and with a
license in that behalf granted under the provisions of th[e]
Act.''11 As noted above, Mr. Simon does not dispute that when
Commission agents visited 1719 Columbus Drive on March 5, 2003,
he was operating a radio station without Commission
authorization. Based on Mr. Simon's admission and the agents'
observations during the inspection, we conclude that Mr. Simon
willfully violated Section 301 of the Act on March 5, 2003 by
operating a radio station on the frequency of 102.1 MHz without a
license.12 We find no basis for cancellation or reduction of the
proposed $10,000 monetary forfeiture based on Mr. Simon's
response to the NAL.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,13 Mr. Fritzner Simon IS LIABLE FOR A MONETARY
FORFEITURE in the amount of ten thousand dollars ($10,000) for
willfully violating Section 301 of the Act.
9. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.14
Payment of the forfeiture may be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Acct. No. and FCC
Registration Number (``FRN'') referenced above. Payment by check
or money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, Illinois 60661. Payment by wire transfer may
be made to ABA Number 071000013, receiving bank ``Bank One,''
account number 1165259. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C.
20554.15
10. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to Mr. Fritzner Simon, 1411 Foxboro Drive, Brandon,
Florida, 33511.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 U.S.C. § 301.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432700003 (Enf. Bur., Tampa Office, released December 11,
2003) (``NAL'').
3 Non-licensed broadcasting in the 88-108 MHz band is permitted
only if the field strength of the transmissions does not exceed
250 microvolts per meter at three meters. See 47 C.F.R. §
15.239(b). In the instant case, measurements showed that the
field strength of the signal exceeded the permissible level for a
non-licensed low-power radio transmitter by 6,105 times.
4FM broadcast operation on frequency 87.9 is limited for use only
by licensed noncommercial educational FM broadcast stations that
have been required by the Commission to change frequencies. See
47 C.F.R. § 73.501.
5Operation of a non-licensed, low-powered transmitter on
frequency 87.9 MHz is restricted to periodic operation, which is
generally used for the transmission of control signals, such as
those used with alarm systems, garage door openers and remote
switches. See 47 C.F.R. §§ 15.209, 15.231. Because operation on
frequency 87.9 MHz must be limited in duration, continuous
operation is not permitted.
6Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful,'
... means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act ....'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
7As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
``repeated'' if it continues for more than one day. The
Conference Report for Section 312(f)(2) indicates that Congress
intended to apply this definition to Section 503 of the Act as
well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn. 56 (2003).
847 U.S.C. § 503(b).
947 C.F.R. § 1.80.
1047 U.S.C. § 503(b)(2)(D).
11 47 U.S.C. § 301.
12 While the NAL also concluded that Mr. Simon's violation was
``repeated'' based on an apparent unlicensed broadcast on August
21, 2003, we need not address that finding in light of the
willful nature of Mr. Simon's admitted March 5, 2003 violation.
See, e.g., Southern California Broadcasting Co., 6 FCC Rcd 4387,
4388 (1991) (in issuing a forfeiture pursuant to 47 U.S.C. §
503(b) of the Act, we are only required to find either a
``willful'' or ``repeated'' violation). A $10,000 forfeiture is
standard for a single instance of unauthorized broadcasting such
as occurred on March 5, 2003. See, e.g., Michael S. Selvanto, DA
04-2488 (Enf. Bur., released August 10, 2004).
1347 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
1447 U.S.C. § 504(a).
15See 47 C.F.R. § 1.1914.